Injunction

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On 2 June, the German Parliament (Deutscher Bundestag) passed a bill (2. Gesetz zur Änderung des Telemediengesetzes – 2nd Amending Law to the Federal Telemedia Act; “New Law”). The New Law limits the scope of potential liability for transmitting information for all professional and non-professional operators of Wi-Fi networks. In particular, operators of Wi-Fi networks shall not be liable for copyright infringements committed by the relevant Wi-Fi networks’ users, providing that:

  • The network operator has not caused the relevant transmission;
  • The network operator has not chosen the recipient of the transmitted information
  • The network operator has not chosen or changed the transmitted information.

The above exemptions shall also apply to short-term automatic store of the relevant information. The exemption shall not apply in the event that the Wi-Fi network operator collaborates with the user in order to commit illegal acts. Notably, there is no specific requirement for Wi-Fi network operators to implement and maintain reasonable security measures, such as access controls.Continue Reading German Parliament (Deutscher Bundestag) releases operators of Wi-Fi networks from liability for copyright infringements committed by the Wi-Fi network users (so-called Störerhaftung)

On 12 May 2016, the German Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH) made several judgments, confirming and developing its settled case law on the liability of a subscriber of an internet connection (“Subscriber”) for copyright infringements made by third persons (see the FSC’s press release of 12 May 2016). The full judgments are not yet available.

In case 1 (Case No. I ZR 48/15), the FSC found that the Subscriber’s allegations, i.e., that his children (15 and 17 years) had shared the litigious 809 audio files, were irrelevant. In particular, the FSC confirmed its earlier position (as in judgment of 11 June 2015, Case No. I ZR 75/14) that there shall be a presumption that the Subscriber has committed the infringements and that this presumption can only be rebutted if the Subscriber achieves to specify in sufficient detail that specific third persons might be the real infringers (so-called sekundäre Darlegungslast). According to the FSC’s view, the mere reference to third persons living in the same household as the Subscriber cannot eliminate the Subscriber’s liability for damages and reimbursement of legal expenses for warning costs.
Continue Reading German Federal Supreme Court confirms its previous positions on liability for copyright infringements within file sharing networks | At the same time, the German Federal Government announces to release professional Wi-Fi network operators from liability

In a judgment dated 15 December 2015, case no VI ZR 134/15, (“Judgment”) the German Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH) confirmed that an electronic mailbox held by a consumer shall be covered by the so-called private sphere of a natural person as part of its general right of privacy. Consequently, the FSC concluded that automatic reply emails by a company to a consumer, which contain not only a confirmation of receipt of an earlier email sent by the consumer but also additional adverts, shall qualify as violation of the natural person’s general right of privacy, provided that the relevant consumer has expressly refused to receive advertisings.

Facts of the Judgment

The plaintiff, a consumer, sent a notice termination to the defendant, an insurance company. The defendant sent an automatic reply to plaintiff, confirming receipt of plaintiff’s email and announcing a detailed response to follow by separate email. In the signature of defendant’s email, advertising statements in relation to certain weather services were displayed. The plaintiff responded to defendant’s email, demanding that defendant stop sending such advertising statements. Notwithstanding, defendant’s email system again sent an automated response, containing the same adverts. Finally, respondent filed an injunction in order to prohibit defendant to send the aforementioned (or similar) electronic adverts without plaintiff’s express consent.
Continue Reading German Federal Supreme Court prohibits unsolicited advertising in signatures of automated B2C email replies confirming receipt of a consumer’s email

Over the last years, a number of German Courts had to decide whether the operator of a website that contains a contact form for the website’s visitors shall be obliged to provide visitors a privacy policy that informs the visitor about type, scope and purposes of collection and use of personal data.

The question whether a breach of the underlying statutory information duties will trigger a competitor’s right to file an injunction against the website operator is highly disputed among German Courts.

Judgment of Higher Regional Court Cologne of 11 March 2016

Under Section 13(1) German Telemedia Act (Telemediengesetz – TMG), a service provider is obliged to inform the user at the beginning of the use of the service about type, scope and purpose of collection and use of personal data in a generally understandable manner, if such information has not already been given.
Continue Reading Privacy policy required for contact forms on websites? German Courts in disagreement

In a Judgment dated 1 March 2016, case no. VI ZR 34/15, the German Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH) specified the scope of monitoring duties of an online rating portal for medical professionals in relation to reviews posted by the users of the portal. If the portal is in breach of its monitoring duties, a medical professional who has been reviewed by a user of the online rating portal is entitled to file an injunction against the portal.

The reasoning of the judgment has not yet been published. However, in a press release of 1 March 2016 the FSC gave some guidance on the requirements under which the provider of an online rating portal might be exposed to injunctive relief by the person reviewed.
Continue Reading German Federal Supreme Court specifies monitoring duties of online rating portals